- (1.) IN this writ application, the petitioner prays for issuance of an appropriate writ in the nature of certiorari for quashing the detention order issued under Section 3 of the National Security Act, 1980 (hereinafter referred to as "the Act) as contained in Memo No. 38 dated 5.2.2002 (Annexure 2) which was passed by the District Magistrate, Lohardaga (respondent no.2).
(2.) THE Superintendent of Police, Lohardaga (respondent no.3) submitted a report against the petitioner to the Deputy Commissioner, Lohardaga by Memo No. 1470 dated 31.10.2001 (Annexure 1) requesting him to issue detention order on the groune that the petitioner is involved in cases such as (i) Kuru P.S. Case No. 65 of 1999 dated 24.9.1999 under sections 147, 148, 149,452, 307, 302, 379 of the Indian Penal Code and Section 27 of the Arms Act; (ii) Kuru P.S;Case NO.6 of 2000 dated 18.2.2000 under sections 147, 148, 149, 452, 380, 364, 436 of the Indian Penal Code and under Section 27 of the Arms Act; and (iii) Kuru P.S. Case No. 36 of 2001 dated 12.6.2001 under Sections 387/ 34 and 120B of the Indian Penal Code and under Section 17(2) of the Criminal Law Amendment Act. On the basis of the said grounds, the District Magistrate, Lohardaga (respondent no.2) passed the order of detention of the petitioner under the Act. The said order was sent to the Government of Jharkhand, which was later on confirmed by order dated 16.3.2002, but the respondent no.2 passed the order dated 5.2.2002 (Annexure -2) for detention of the petitioner under the Act without giving opportunity to the petitioner. One counter -affidavit has been filed on behalf of the respondents claiming therein that the said order of detention was confirmed by the order dated 16.3.2002 by the Home Department of the State of Jharkhand. It has further been stated that the petitioner is an extremist indulged in the group of M.C.C. an~ there is no illegality in the order. 2001 (2) JLJR 354]. 5. On the other hand, Mr. Jai Prakash, learned standing counsel appearing on behalf of the respondents contended before me that there is no illegality in the order impugned as the petitioner has been involved in the criminal cases and is a member of the M.C.C. Group. It is also submitted that the order passed by the District Magistrate, Lohardaga was duly confirmed by the Home Department of the State of Jharkhand and the police has got sufficient evidence against the petitioner. Therefore, there is no illegality in the order impugned. 6. The Superintendent of Police, Lohardaga recommended for detention of the petitioner on the basis of only three criminal cases of which the petitioner has already been acquitted in one of those cases. 7. Clause (4) of Section 3 of the Act reads as under: - "When any order is made under this section by an officer mentioned in sub -section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government". 8. Approval of the State Government is pre -condition and that too be done within 12 days from passing the order by the Detaining Authority. It is incumbent upon the Detaining Authority to report the matter to the State Government forthwith but surprisingly enough to note that there is no approval by the State Government. In this view of the matter, though one confirmation order has been placed which was passed on 16.3.2002 under section 12(1) of the Act, whereas the detention order was passed on 5.2.2002 i.e. beyond 12 days. Section 3 of' Clause (4) of the Act makes it obligatory upon the State Government to examine the order of preventive detention and approve the same within a period of 12 days from the date of making the order of detention. The detention order will get vitiated if the detention order has not been approved by the State Government. In the instant case, obviously, there is no approval of the State Government. 9. Next it is also evident that the Detaining Authority has not filed his counter -affidavit. Whenever in a preventive detention case, there is allegation that the detention order has been passed without requisite application of mind by the Detaining Authority, the mandatory requirement of law is that the Detaining Authority has to file his affidavit after being satisfied. 10. Article 21 of the Constitution of India clearly provides that no person shall be deprived of his life or personal liberty except, according to the procedure established by law. Article 22 of the Constitution of India dealing with arrest and detention in certain cases lays down certain safeguards and protections such as: - (a) right to be informed regarding grounds of arrest, (b) right to consult and to be defended by a legal practitioner of choice, (c) right to be produced before a Magistrate within 24 hours, (d) freedom from detention beyond the said period except by order of the Magistrate. Subjective satisfaction of the Detaining Authority cannot be substituted by the satisfaction of some one else. The detention order must not be passed mechanically. The subjective satisfaction of the Detaining authority is essential for passing the order of detention under the Act. 11. Simply because the petitioner has been an accused in three cases, his action cannot be said to be prejudicial to the maintenance of public order when obviously he has been acquitted in one of those cases. The Detaining authority has to be satisfied on the valid grounds that the person concerned would be likely to act in a manner prejudicial to the maintenance of public order, unless such satisfaction is made on the valid grounds, none can be detained in the preventive measure. The Detaining Authority cannot take the recourse of cases as sole ground, which are the subject matter of criminal trial. Surprisingly enough to mention that not a single chit of paper placed to indicate that the petitioner was ever communicated about the detention order made by the District Magistrate nor the petitioner was heard on the matter by taking his representation as the petitioner has got a right to be informed regarding grounds of arrest. Thus the order of detention apparently is violative of Article 21 of the Constitution of India and also of the mandatory provision of the Act for which the detention order cannot be sustained in law. 12. Having regard to the above facts and circumstances coupled with the discussions made hereinabove, I allow this application and quash the detention order dated 5.2.2002 (Annexure 2) and direct the respondent no.2 (District Magistrate, Lohardaga) to release the petitioner forthwith if not wanted in any other case.;